Vape shops say they’ll sue over new Utah law banning flavored e-cigarettes

A new law that will ban flavored electronic cigarettes, which supporters say are getting kids hooked on nicotine, will be devastating to Utah’s nearly 200 vape shops, according to a representative of the industry, who intends to challenge the law in court.

The sponsor of that law, pediatrician and Salt Lake Democratic Sen. Jen Plumb, said she has seen kids in the emergency room going through withdrawal because they can’t vape in the hospital and friends whose children are anxious about going without their nicotine on long flights.

Previous efforts to prevent teens from getting e-cigarettes had failed, she said, so she set her sights on eliminating the fruity, sweet-flavored vapes that national data shows 90% of underage users start out using.

“Rather than continuing to kind of fiddle around with little bits and pieces — it’s not doing it. Kids are still getting access,” she said in an interview. “And if kids become hooked on nicotine, they are nicotine users the rest of their lives. Period. That’s just what it is.”

Plumb’s bill, signed into law last month by Gov. Spencer Cox, goes further than just banning flavors — aside from tobacco or menthol. It also bans the sale of any vape product with a nicotine concentration above 4%. And it only allows the sale of products that have either been approved by the U.S. Food and Drug Administration or have submitted an application for approval prior to September 2020.

Nobody knows how many products will have to be removed from shelves. To date, there are only 17 FDA-approved products from three manufacturers that meet the criteria, and an FDA spokeswoman said they don’t know how many pre-2020 applications are still pending.

According to Beau Maxon, vice president of the Utah Vapor Business Association and owner of Park City Vapor Company, one thing is certain: It will be a death sentence for many vape shop owners.

“There’s no question about it,” Maxon said in an interview, “it is going to put the retail tobacco specialty industry in jeopardy and you’re going to see a lot of them not able to stay open.”

That’s because in a vape shop like his, Maxon said, 99.9% of the products they sell are flavored — not because they’re targeting kids, but because it’s what his adult customers want.

Indeed, walk into any vape shop and the shelves are lined with flavors like bubblegum, lemon drop, mango, lime, fruit punch — all of which will be outlawed when the law takes effect on Jan. 1, 2025.

While that will threaten Utah businesses like his, Maxon contends it won’t keep products out of the hands of minors. That’s because, according to records the association has gathered from nine of the state’s 13 local health departments, the tobacco shops typically do slightly better than other retailers like gas stations and convenience stores on compliance checks.

Between 2019 and 2023, the general retailers failed compliance checks 8.3% of the time while the tobacco stores and vape shops failed 7.5%, the data shows.

Vape shops, Maxon said, have more to lose if they are hit with violations. If a convenience store makes an underage sale, they pay a $1,000 fine. A vape shop that sells to a minor gets a $5,000 fine and can’t sell any products for 30 days. If there is a second violation in a two-year period, the shop is shut down permanently.

The practical effect of the bill, Maxon contends, is that Utah shop owners will be shut down and customers will be driven to gas stations and convenience stores that mostly sell products manufactured by the massive tobacco companies like Altria, which owns a portion of Juul, and R.J. Reynolds, the maker of the Vuse line of e-cigarettes. Those two brands reportedly control two-thirds of the market.

“This bill is going to put honest business owners out of business. … Retailers will get their cut and Big Tobacco will get their cut,” he said. “This is a monopoly bill for Big Tobacco.”

Plumb has heard that criticism before and said it couldn’t be further from the truth.

“I don’t even know who Big Tobacco is, honestly,” she said. “I’ve never talked with any of them. There have never been any conversations about that. … The impression that some community members have is that the only reason legislation is ever run is so that someone gets some sort of gain. And for me, the gain is protecting these kiddos.”

According to the Utah Student Health and Risk Prevention survey conducted every other year by Utah’s Department of Health and Human Services, the rate of teen vaping is actually declining.

Up until last year, the survey didn’t distinguish between vaping nicotine or marijuana but the number of students in grades six through 12 who reported ever trying either drug fell…